Home HOWARD MOULTON & another vs. ATTLEBORO MUTUAL FIRE INSURANCE COMPANY.

4 Mass. App. Ct. 772

January 29, 1976

It was open to the judge to find from the photographs attached to the statement of agreed facts that the object blown loose by the windstorm (which is described in the statement as an "aluminum extension roof attached to the trailer") was not made of fabric, that it consisted of a piece of metal (or of several pieces of metal joined together), but that it contained no slats. Once such findings were made the judge could properly conclude that the object was a "canopy" within either of the lexical definitions of that word which have been brought to our attention by the defendant but still rule that the "canopy" did not fall within (d) of the windstorm provisions of the extended coverage endorsement of the policy. It is clear to us from a study of the judge's actions on the defendant's fifth through tenth requests for rulings (nowhere discussed in the defendant's brief) that such were the mental processes employed by the judge in finding for the plaintiffs.

Judgment affirmed.

Home COMMONWEALTH vs. EDWARD F. KENNEDY.

4 Mass. App. Ct. 772

February 5, 1976

The defendant appeals under G. L. c. 278, Section 33B, from convictions of unlawful possession of a shotgun with a barrel less than eighteen inches, attempted kidnapping, and armed robbery of an automobile. The victim testified that while he was seated in his car the defendant, armed with the shotgun, had tried to kidnap him, but that he had managed to escape as the defendant drove the car away. The defendant, who denied any intent to kidnap, admitted having taken the car at gunpoint, but defended on the ground of compulsion. He testified that he had been escaping an unknown man who had had the shotgun and was attempting to kidnap him, and from whom he had escaped after seizing the shotgun. 1. The defendant's exception to the trial judge's exclusion of the conversation between the unknown man and the defendant fails because there was no offer of proof which would enable us to determine whether the defendant was prejudiced by the ruling. Commonwealth v. Baker, 348 Mass. 60 , 63-64 (1964). Commonwealth v. Kleciak, 350 Mass. 679 , 693 (1966). 2. The exclusions of testimony which were followed by offers of proof were not erroneous. None of the excluded material tended to prove the existence of a compulsion which was "present, immediate and impending, and of such a nature as to induce a well founded fear of death or at least serious bodily injury . . . [and from which there was] . . . no reasonable opportunity to escape . . . without committing the crime." Rhode Island Recreation Center v. Aetna Cas. & Sur. Co. 177 F.2d 603, 605 (1st Cir. 1949). Perkins, Criminal Law 954 (2d ed. 1969). 3. The judge did not err in instructing the jury that they were not to consider compulsion, because there was no evidence which, if believed, would have made out a defense of compulsion. Commonwealth v. Moore, 359 Mass. 509 , 515-516 (1971). Perkins, supra. 4. The requested instruction that one who disarms his attacker is not guilty of unlawful possession was properly refused because the defendant admitted that he held the gun long thereafter. 5. The defendant's motion for a directed verdict of not guilty on the armed robbery indictment was properly denied, both because the requisite intent might

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have been inferred from the circumstances of the defendant's taking the car, Commonwealth v. Salerno, 356 Mass. 642 , 648 (1970), and cases cited, and because, even if that inference were not permissible, the jury could have found the defendant guilty of a lesser included offense. Commonwealth v. Subilosky, 352 Mass. 153 , 166-167 (1967). Commonwealth v. Kalinowski, 360 Mass. 682 , 686 (1971). 6. Records of the defendant's prior convictions, consisting in each case of a copy of the indictment and a copy of the docket entries, were introduced in evidence, some over an objection the basis of which was not made clear at the time but which later turned out to have been an objection to statements in two of the dockets that the defendant had refused mental examination. Because the records of conviction were generally admissible, the general objection to the admission of a group of five such records, only two of which contained the offending material, was unavailing. Commonwealth v. Bottiglio, 357 Mass. 593 , 596 (1970), and cases cited. In addition, because the refusal noted in one of the dockets was on the same date (and may well have been the same refusal) as the one noted in the docket admitted without objection, and the other refusal was remote in time (nine years earlier), the defendant could not have been harmed. Vernazzarro v. A. A. Will Corp. 2 Mass. App. Ct. 885 (1974), and cases cited. 7. There was no error in sending the exhibits to the jury room. Forcier v. Hopkins, 329 Mass. 668 , 671-672 (1953). Commonwealth v. Rondoni, 333 Mass. 384 , 386 (1955). The request that the records of conviction not be sent to the jury room was addressed to the discretion of the judge, and there was no abuse of discretion. Compare Solomon v. Dabrowski, 295 Mass. 358 , 360 (1936).

Judgments affirmed.